on-time, and on-target, patrick fitzgerald and his team of assistant united states attorneys, acting asspecial counsel, have filed a responseto lawrence robbins’ motion of june 19,on behalf of scooter libby.

i’ll focus my commentary on the argumentthat has received the least attention tothis point — in no small part becausemr. libby’s trial lawyers never botheredto raise the point before, during or afterthe trial, instead raising it for the firsttime at the second sentencing hearing beforejudge walton — the so-called c.i.p.a. § 6missing-signature “error“.

so — here is footnote 12, on page 14[click to enlarge, as ever. . .]:

team fitz here lucidly-explains that because c.i.p.a. § 6(e) contemplates a breath-taking foreclosure — ofwhat would otherwise be an unconstitutional abridgingof a criminal defendant’s right to present exculpatoryinformation, in his own defense — due to what must be highly unusual national security considerations — mr. robbins is. . .

it seems the idea of pissing-off judge walton bystomping about in his court-room, spouting dis-missively high-handed nonsense like “i was therewhen [supreme court justice antonin scalia] readhis dissent. . .” [in morrison] is already coming back to bite mr. robbins — note that much of team fitzs’ latest filing, tonight, does borrow fromjudge walton’s memorandum opinion filed onlyyesterday, but back-dated — nunc pro tunc — tojune 14, 2007. thus robbins will have to use hisreply brief (due on tuesday the 26th) to answerboth team fitz, and judge walton, just as i hadpredicted. . . [it is never wise to burn a brigdebefore any judge one might ever appear before, again.

and that is every judge. the world is that small. andsmaller by the day. . .]

he he! — here endeth the sermon. . .

~~~~~~~~~~~~~~~~~~even later. . .~~~~~~~~~~~~~~~~~~

a good discussion of the c.i.p.a.§ 6 issues is underway over at thenexthurrah — as follows:

~~~~~~~~~~~~~~~~~~

nolo – I hate to say it, but I don’t buy Fitzgerald’s 6(a)& (c) vs. (e) argument. Yes, the issue in (e) is more drastic, but I think it is a hard argument to say that decisions as to how to handle this kind of national security information in the court room and in litigation, even under the lesser issues presented in 6(a) and (c), goes beyond mere minsiterial acts – all of CIPA is a weighing and balancing of defendants rights and information protection and there are policy issues interwoven throughout. The fact that, in this paricular case, the USAtty handling the case has more credibility than the AG and all the delegees listed in the CIPA statute doesn’t mean, IMO, that you can minimize the importance of what is intended to be highest levels of DOJ involvement in CIPA decisions, beyond ordinary classified info and getting to national security considerations. I like Fitzgerald’s arguments on the whole, and I would have made the same argument as he did as a part of a phalanx of counterarguments (I like arguing the string and not picking out a pearl), but I’m not sure how good an idea it is to try to get a court to rule that the AG’s CIPA involvement in 6(a) and (c) settings is merely ministerial – that would bother in the long run if it held the day. But that’s just a personal take.

Posted by: Mary | June 23, 2007 at 00:48

~~~~~~~~~~~~~~~~~~

mary wrote:

“. . .all of CIPA is a weighing and balancing of defendants rights and information protection and there are policy issues interwoven throughout. . .”

mary — all you wrote makes good sense. permitme to suggest, however, that just because nationalsecurity is in play, it does not a priori meanthat none of it can be ministerial. as fitz correctlynotes, assistant u.s. attorneys (i.e., ones not appointedby the president, with the advice and consent of the senate)often sign the sort of filing only now — belatedly — complainedabout (more on that, in a second) by team libby.

thus, a look at the intent of separating § 6(a) or § 6(c) from § 6(e) is illuminating, here. note that (e) forecloses a defendant’s right to present exculpatory evidence — and, thatplainly runs down the middle of the sixth and seventhamendments’ fairways. . . closing the courtroom to thepublic, on the other hand, is a very commonly-employeddevice (think mob-RICO trials, here), that in no mannerreads upon the defendant’s constitutional rights. thatis plainly so, because the the right to witness trialsis a “public” right — it is the public’s right toknow, not the accused’s right to be watched — inplay at that moment, generally speaking.

now, if that does not persuade, mary, let me suggest,as team fitz/team USA did, that the whole c.i.p.a. issuehas been waived by team libby. all of these matterswere filed with the court, via pacer, at the time, pre-trial, and the law deems scooter’s lawyers to know every-thing filed in the case. specifically, fitz points thecourt of appeals to the well-settled case-law that holdsa defendant must make plain the basis upon which — withparticularity — he assigns error to any portion of his trial and conviction, in order to preserve the issue forappeal, and allow for remediation, if possible, during thetrial. . . so, while i don’t like waivers much, regardingwhat may turn out to be a contentious issue — i think thecourt will actually likely rule not on the merits of thec.i.p.a. claim of error, but instead will hold that the timeto complain about so easily-remediated a matter was overa year ago — when a simple second signature would haveevaporated any perceived infirmity.

in sum, i am no longer worried at all about the c.i.p.a.issue — such as it is — being the basis for a releasewhile on appeal, nor ultimately, a remand or reversal.

~~~~~~~~~~~~~~~~~~

nolo –

I’m not saying that, overall, I don’t like Fitzgerald’s arguments. Personally, I am quite certain he is an inferior officer and that is because the investigation was in-housed with a delegation that was not in any manner irrevocable or subject to any constraints on the delegor with respect to subsequent with respect to amendment or modification – I don’t think Fitzgerald wants to go there, though, bc it undercuts the whole premise that DOJ can conduct thorough investigations without interefence.

Still – I don’t buy the 6(a) & (c) v. (e) arguments (and you don’t have to buy them for the inferior officer argument to prevail).

While you sever out, for constitutional reasons, the 6(e) aspects on the right to present exculpatory evidence, I think the whole issue of national security aspects does present, a priori, a different situation. AsstUSAs can request closed hearing and the like with respect to normal classified information. But there is no question but that they do NOT have that ability under CIPA.

If Fitzgerald had wanted to act under something other than CIPA, too, the Judge has different rights and duties vis a vis his independent determinations on classified info. OTOH, when national security is implicated, you are talking immediately about an area where the court is pretty much required to give more deference. When you have, not only the existing case law and the Executive’s positions that there should be special handling of national security info, but also have Congress weighing in and saying that ONLY a very select group in DOJ is supposed to make determinations about the handling of national security information in the judiciary, I think it is artificial to pull out the 6(e) separately and that statute makes no effort to do that.

Keep in mind that the appointment objections were made before the CIPA rulings, but there is a very different issue of waiver on the actual CIPA issue presented (that there was improper authorization under 6(a) and 6(c) – and Walton seems to pretty much decide that Fitzgerald did violate statute there) than there is on the CIPA violation as evidentiary of the original appointments violation. I don’t think Team Libby has to re-raise their appointments objection every time something happens that they think is further evidence of their rejected appointments claim. Their claim as originally timely made and I think that preserves all they need, but the case law could be to the contrary on that.

What you basically have, on the Constituional front there, is not the constitutional issue of the impact on Libby’s 6th amendment rights, so much as the constituional issue of: if the AG (here the acting AG) delegates to a USA powers that Congress said, in CIPA (for national security/policy reasons) can only be delegated to a small group that does not include USAs or Spec. Prosecutors, or if a Special Pros assumes the right to act without statutory authority to act, then is this merely a statutory violation or is it evidentiary of a violation or intent to violate the appointments clause? There, it seems the principal element is whether the power delegated is on that can arguably only be held by a principal officer. You have the Deputy AG, Associate AG, and Assistant AGs as the possible recipients under the statute and so one of the main questions is – are THEY principal officers?

All of them? I’m going to bet there is not a lot of authority out there, but also that it would be a hard way to go to show that none of them are subject to “meaningful supervision” by the AG. If so, and Fitzgerald makes the argument that at least Assistant AGs are inferior officers, then the statutory violation pretty clearly does NOT implicate the appointments clause. So whether Comey violated the statute by impermissibly delegating, or Fitzgerald violated the statute by acting without authorization under it, if the statute allows the AG to delegate to INFERIOR OFFICERS and the screw up was either a delegation to the wrong inferior officer or an inferior officer acting without receiving or being entitled to receive delegation – it really has nothing to do with the appointments clause.

I think Walton (and/or an excellent clerk or so) does a nice job with the statutory/constitutional dichotemy in his opinion, even though he had very little time to get it out. If Sec 14 allows delegation to inferior officers (and I’d have to agree with Fitzgerald’s argument – although assistant AGs go through confirmation who would say they are not subject to meaningful supervision?) then it is really just an issue of statutory violation. Of course, the Spec Pros crew isn’t going to want to be in that situation either if they can help it (violating statute) so there will be argument on the rest of it – ministerial acts, ability of AG to delegate this kind of power to a Spec Pros bc of 510 even though not specified in CIPA, etc.

But to me, the winner is that the CIPA delegation has to be to a small group, but that small group include inferior officers. So the statutory violation isn’t really – despite the good try at the argument by Robbins – evidentiary on the principal/inferior officer issue.

fwiw.

Posted by: Mary | June 23, 2007 at 13:25

~~~~~~~~~~~~~~~~~~

well-put, mary. we disagree onlyabout the minor details, not thebroad outline here — so i will note,quoting now from team fitzs’ filingof june 12, 2007:

. . .[team libby] ignores the fact that in the § 6(c) proceedings, the Court [judge walton]actually adopted the “lens” proposed by the defendant[-libby], rejecting the government’s view that national security interests should be considered when assessing the adequacy of substitutions. The defendant also ignores thefact that the Court’s § 6(c) determinations, like its § 6(a) determinations, are evidentiarydeterminations not rulings of law. . . [ed.: and thus should be accorded great deference on appellate review. . .]See United States v. Rezaq, 134 F.3d 1121, 1142-1143 (D.C. Cir. 1998). . .

. . .The admission of this substitution, like the admission of the other substitutions providedby the government during the § 6(c) process, was conditioned on the § 6(a) relevancy determinations made by the Court, e.g., without the foundational predicate establishing the relevance of the informationthat was being substituted, the substitution itself certainly could not be relevant.

During trial, the defendant sought to introduce theStatement despite the fact that he had not taken thestand. The Court excluded the Statement in its entiretyunder Federal Rules of Evidence 401 and 403 as both irrelevant and unduly prejudicial without the defendant’s testimony, stating that “it could not require the government to stand by a substitution of evidence that it agreed to with the understanding – and in light of this Court’s rulings, based on the same understanding – thatthe defendant himself would testify.” Libby, 475 F. Supp. 2d at 86. The Court added:

Admitting [the Statement’s last three] paragraphs in the absence of the defendant’s own testimony would have provided the government no opportunity to cross-examine him on the extent and nature of his concern about these issues, with the result that the jury would have been presented an entirely one-dimensional, one-sided portrayal of the defendant’s state of mind with respect to those issues. Neither Rule 403 nor the basic principles of fairness underlying the Federal Rules of Evidence . . . would permit the defendant to put [those paragraphs] before the jury in such manner. . .

. . .The defendant claims that the Court’s exclusion of a portion of the testimony from the briefers presents a substantial question. This claim likewise lacks merit. The decision to exclude a portion of the briefers’ testimony was, like the exclusion of the Statement, based on the fact that the relevance of that testimony was predicated on testimony from the defendant regarding the importance he attached to the information the briefers provided him. “Without the defendant’s own testimony, he could not present through the briefers evidence suggesting what matters were allegedly consuming his time or attention beyond when the briefings were conducted, or the relative importance of those matters he was tasked to address at a particular time.” Libby, 475 F. Supp. 2d at 89. . .

. . .In permitting the defendant to admit some testimony from the briefers, while excluding other information whose relevance was specifically predicated on the defendant’s testimony, the Court struck a careful balance under Federal Rules of Evidence 401 and 403. As with its decision regarding the Statement, nothing about this ruling presents a “close question.” The defendant’s citations to this Court’s statements that it was “not sure” whether to exclude a portion of the testimony or that it was “a tough call” must be put in context. These statements were made in the context of a district court’s routine and discretionary evidentiary determinations under Rules 401 and 403. They are highly fact specific, based on the district court’s assessment of relevance, and of what the defendant was able, through other evidence, to put before the jury. These statements also preceded the district court’s thorough analysis in its March 1, 2007 opinion as to why a portion of the briefers’ testimony was justifiably excluded at trial, an analysis that offered no equivocation on the issue:

The government was correct that, as was true of the Statement Admitting Relevant Facts, the Court’s § 6(a) rulings pertaining to the defendant’s intelligence briefings, and the level of detail the Court deemed admissible, hinged on its assumption that the defendant himself would lay a foundation establishing their relevance. Likewise, as with the Statement, the Court was cognizant of the potential for prejudice that would have arisen if the defendant had been permitted to portray his own state of mind without allowing the government any effective means of challenging it through cross examination.

And there was indeed a significant danger that if presented with details of national security issues and suggestions by those who worked with him that the defendant himself was personally concerned about those issues, the jury would have been unable to resist speculating about the relative import of those matters to thedefendant. . .

so — while i will concede that there may besome tenuous basis to suggest that the c.i.p.a.§§ 6(a) and (c) substitutions were some evidenceof fitz acting beyond the statute — too indepen-dently — i think it a stretch to manufacture the rich and hearty soup of release, from this warm, but ultimately-watery, gruel. i submit that these,like the admission or non-admission decisions areevidentiary, and would not present a question — “close“,or otherwise — likely to result in a reversal.

. . .In the area of national security, however, the mission of the Attorney General is arguably just as sacred. The Attorney General is largely concerned with safeguarding national security, either by prosecuting those who endanger it or by discharging his CIPA duties. In cases that do not involve the interaction of CIPA and the IC Statute, the Attorney General often must decide between the public disclosure of classified information and the dismissal of charges against a defendant.

The Independent Counsel’s and Attorney General’s interests may compete as they did in North and Fernandez. The Independent Counsel is appointed to worry more about a successful prosecution than about preventing the disclosure of classified information that may compromise national security. The Independent Counsel, unlike the Attorney General, is not part of the Cabinet. This ensures insulation from political bias, but on the other hand, it may mean narrowness of goals and vision. Finally, the factual information that guides the Attorney General’s and the Independent Counsel’s respective analyses is likely to be different because their investigative resources and access to relevant information are often unequal. The Independent Counsel may not have access to information that would show how serious a threat to national security the public disclosure of certain classified information could pose while the Attorney General and other cabinet members would. Moreover, the Independent Counsel will ordinarily not be privy to the Executive Branch’s foreign policy goals, which may affect the seriousness of a classification.

The Attorney General on the other hand might be overly concerned about the potential threat to national security presented by a CIPA case. This might be the result of the intelligence agencies’ tendency to over-classify and the deference that the Attorney General might pay to the experts in the intelligence agencies. In a CIPA- [568] IC Statute case, the Executive’s loss of exclusive control over these prosecutions might cause it to be more conservative in the positions that it takes relating to classified information. Once it decides that information can be publicly disclosed, the Independent Counsel alone makes the determination on the part of the Executive Branch whether the prosecution ought to continue.

Because the Attorney General and the Independent Counsel ultimately do not have entirely the same goals, some conflict concerning the use of classified information is inevitable. Indeed, even if the interests of the Independent Counsel and Attorney General completely coincided-if, for instance, both were concerned with balancing national security interests against prosecutorial benefits-it would still be very likely that the Independent Counsel and the Attorney General would disagree in many classified information/ national security cases. Disagreements are inevitable, if only because balancing the competing considerations in these complex cases is an imprecise science. More than one reasonable analysis or balance is almost always possible, and any two reasonable lawyers are bound to disagree about the judgments that have to made in difficult cases. . .

on-time, and on-target, patrick fitzgerald and his team of assistant united states attorneys, acting asspecial counsel, have filed a responseto lawrence robbins’ motion of june 19,on behalf of scooter libby.

i’ll focus my commentary on the argumentthat has received the least attention tothis point — in no small part becausemr. libby’s trial lawyers never botheredto raise the point before, during or afterthe trial, instead raising it for the firsttime at the second sentencing hearing beforejudge walton — the so-called c.i.p.a. § 6missing-signature “error“.

so — here is footnote 12, on page 14[click to enlarge, as ever. . .]:

team fitz here lucidly-explains that because c.i.p.a. § 6(e) contemplates a breath-taking foreclosure — ofwhat would otherwise be an unconstitutional abridgingof a criminal defendant’s right to present exculpatoryinformation, in his own defense — due to what must be highly unusual national security considerations — mr. robbins is. . .

it seems the idea of pissing-off judge walton bystomping about in his court-room, spouting dis-missively high-handed nonsense like “i was therewhen [supreme court justice antonin scalia] readhis dissent. . .” [in morrison] is already coming back to bite mr. robbins — note that much of team fitzs’ latest filing, tonight, does borrow fromjudge walton’s memorandum opinion filed onlyyesterday, but back-dated — nunc pro tunc — tojune 14, 2007. thus robbins will have to use hisreply brief (due on tuesday the 26th) to answerboth team fitz, and judge walton, just as i hadpredicted. . . [it is never wise to burn a brigdebefore any judge one might ever appear before, again.

and that is every judge. the world is that small. andsmaller by the day. . .]

he he! — here endeth the sermon. . .

~~~~~~~~~~~~~~~~~~even later. . .~~~~~~~~~~~~~~~~~~

a good discussion of the c.i.p.a.§ 6 issues is underway over at thenexthurrah — as follows:

~~~~~~~~~~~~~~~~~~

nolo – I hate to say it, but I don’t buy Fitzgerald’s 6(a)& (c) vs. (e) argument. Yes, the issue in (e) is more drastic, but I think it is a hard argument to say that decisions as to how to handle this kind of national security information in the court room and in litigation, even under the lesser issues presented in 6(a) and (c), goes beyond mere minsiterial acts – all of CIPA is a weighing and balancing of defendants rights and information protection and there are policy issues interwoven throughout. The fact that, in this paricular case, the USAtty handling the case has more credibility than the AG and all the delegees listed in the CIPA statute doesn’t mean, IMO, that you can minimize the importance of what is intended to be highest levels of DOJ involvement in CIPA decisions, beyond ordinary classified info and getting to national security considerations. I like Fitzgerald’s arguments on the whole, and I would have made the same argument as he did as a part of a phalanx of counterarguments (I like arguing the string and not picking out a pearl), but I’m not sure how good an idea it is to try to get a court to rule that the AG’s CIPA involvement in 6(a) and (c) settings is merely ministerial – that would bother in the long run if it held the day. But that’s just a personal take.

Posted by: Mary | June 23, 2007 at 00:48

~~~~~~~~~~~~~~~~~~

mary wrote:

“. . .all of CIPA is a weighing and balancing of defendants rights and information protection and there are policy issues interwoven throughout. . .”

mary — all you wrote makes good sense. permitme to suggest, however, that just because nationalsecurity is in play, it does not a priori meanthat none of it can be ministerial. as fitz correctlynotes, assistant u.s. attorneys (i.e., ones not appointedby the president, with the advice and consent of the senate)often sign the sort of filing only now — belatedly — complainedabout (more on that, in a second) by team libby.

thus, a look at the intent of separating § 6(a) or § 6(c) from § 6(e) is illuminating, here. note that (e) forecloses a defendant’s right to present exculpatory evidence — and, thatplainly runs down the middle of the sixth and seventhamendments’ fairways. . . closing the courtroom to thepublic, on the other hand, is a very commonly-employeddevice (think mob-RICO trials, here), that in no mannerreads upon the defendant’s constitutional rights. thatis plainly so, because the the right to witness trialsis a “public” right — it is the public’s right toknow, not the accused’s right to be watched — inplay at that moment, generally speaking.

now, if that does not persuade, mary, let me suggest,as team fitz/team USA did, that the whole c.i.p.a. issuehas been waived by team libby. all of these matterswere filed with the court, via pacer, at the time, pre-trial, and the law deems scooter’s lawyers to know every-thing filed in the case. specifically, fitz points thecourt of appeals to the well-settled case-law that holdsa defendant must make plain the basis upon which — withparticularity — he assigns error to any portion of his trial and conviction, in order to preserve the issue forappeal, and allow for remediation, if possible, during thetrial. . . so, while i don’t like waivers much, regardingwhat may turn out to be a contentious issue — i think thecourt will actually likely rule not on the merits of thec.i.p.a. claim of error, but instead will hold that the timeto complain about so easily-remediated a matter was overa year ago — when a simple second signature would haveevaporated any perceived infirmity.

in sum, i am no longer worried at all about the c.i.p.a.issue — such as it is — being the basis for a releasewhile on appeal, nor ultimately, a remand or reversal.

~~~~~~~~~~~~~~~~~~

nolo –

I’m not saying that, overall, I don’t like Fitzgerald’s arguments. Personally, I am quite certain he is an inferior officer and that is because the investigation was in-housed with a delegation that was not in any manner irrevocable or subject to any constraints on the delegor with respect to subsequent with respect to amendment or modification – I don’t think Fitzgerald wants to go there, though, bc it undercuts the whole premise that DOJ can conduct thorough investigations without interefence.

Still – I don’t buy the 6(a) & (c) v. (e) arguments (and you don’t have to buy them for the inferior officer argument to prevail).

While you sever out, for constitutional reasons, the 6(e) aspects on the right to present exculpatory evidence, I think the whole issue of national security aspects does present, a priori, a different situation. AsstUSAs can request closed hearing and the like with respect to normal classified information. But there is no question but that they do NOT have that ability under CIPA.

If Fitzgerald had wanted to act under something other than CIPA, too, the Judge has different rights and duties vis a vis his independent determinations on classified info. OTOH, when national security is implicated, you are talking immediately about an area where the court is pretty much required to give more deference. When you have, not only the existing case law and the Executive’s positions that there should be special handling of national security info, but also have Congress weighing in and saying that ONLY a very select group in DOJ is supposed to make determinations about the handling of national security information in the judiciary, I think it is artificial to pull out the 6(e) separately and that statute makes no effort to do that.

Keep in mind that the appointment objections were made before the CIPA rulings, but there is a very different issue of waiver on the actual CIPA issue presented (that there was improper authorization under 6(a) and 6(c) – and Walton seems to pretty much decide that Fitzgerald did violate statute there) than there is on the CIPA violation as evidentiary of the original appointments violation. I don’t think Team Libby has to re-raise their appointments objection every time something happens that they think is further evidence of their rejected appointments claim. Their claim as originally timely made and I think that preserves all they need, but the case law could be to the contrary on that.

What you basically have, on the Constituional front there, is not the constitutional issue of the impact on Libby’s 6th amendment rights, so much as the constituional issue of: if the AG (here the acting AG) delegates to a USA powers that Congress said, in CIPA (for national security/policy reasons) can only be delegated to a small group that does not include USAs or Spec. Prosecutors, or if a Special Pros assumes the right to act without statutory authority to act, then is this merely a statutory violation or is it evidentiary of a violation or intent to violate the appointments clause? There, it seems the principal element is whether the power delegated is on that can arguably only be held by a principal officer. You have the Deputy AG, Associate AG, and Assistant AGs as the possible recipients under the statute and so one of the main questions is – are THEY principal officers?

All of them? I’m going to bet there is not a lot of authority out there, but also that it would be a hard way to go to show that none of them are subject to “meaningful supervision” by the AG. If so, and Fitzgerald makes the argument that at least Assistant AGs are inferior officers, then the statutory violation pretty clearly does NOT implicate the appointments clause. So whether Comey violated the statute by impermissibly delegating, or Fitzgerald violated the statute by acting without authorization under it, if the statute allows the AG to delegate to INFERIOR OFFICERS and the screw up was either a delegation to the wrong inferior officer or an inferior officer acting without receiving or being entitled to receive delegation – it really has nothing to do with the appointments clause.

I think Walton (and/or an excellent clerk or so) does a nice job with the statutory/constitutional dichotemy in his opinion, even though he had very little time to get it out. If Sec 14 allows delegation to inferior officers (and I’d have to agree with Fitzgerald’s argument – although assistant AGs go through confirmation who would say they are not subject to meaningful supervision?) then it is really just an issue of statutory violation. Of course, the Spec Pros crew isn’t going to want to be in that situation either if they can help it (violating statute) so there will be argument on the rest of it – ministerial acts, ability of AG to delegate this kind of power to a Spec Pros bc of 510 even though not specified in CIPA, etc.

But to me, the winner is that the CIPA delegation has to be to a small group, but that small group include inferior officers. So the statutory violation isn’t really – despite the good try at the argument by Robbins – evidentiary on the principal/inferior officer issue.

fwiw.

Posted by: Mary | June 23, 2007 at 13:25

~~~~~~~~~~~~~~~~~~

well-put, mary. we disagree onlyabout the minor details, not thebroad outline here — so i will note,quoting now from team fitzs’ filingof june 12, 2007:

. . .[team libby] ignores the fact that in the § 6(c) proceedings, the Court [judge walton]actually adopted the “lens” proposed by the defendant[-libby], rejecting the government’s view that national security interests should be considered when assessing the adequacy of substitutions. The defendant also ignores thefact that the Court’s § 6(c) determinations, like its § 6(a) determinations, are evidentiarydeterminations not rulings of law. . . [ed.: and thus should be accorded great deference on appellate review. . .]See United States v. Rezaq, 134 F.3d 1121, 1142-1143 (D.C. Cir. 1998). . .

. . .The admission of this substitution, like the admission of the other substitutions providedby the government during the § 6(c) process, was conditioned on the § 6(a) relevancy determinations made by the Court, e.g., without the foundational predicate establishing the relevance of the informationthat was being substituted, the substitution itself certainly could not be relevant.

During trial, the defendant sought to introduce theStatement despite the fact that he had not taken thestand. The Court excluded the Statement in its entiretyunder Federal Rules of Evidence 401 and 403 as both irrelevant and unduly prejudicial without the defendant’s testimony, stating that “it could not require the government to stand by a substitution of evidence that it agreed to with the understanding – and in light of this Court’s rulings, based on the same understanding – thatthe defendant himself would testify.” Libby, 475 F. Supp. 2d at 86. The Court added:

Admitting [the Statement’s last three] paragraphs in the absence of the defendant’s own testimony would have provided the government no opportunity to cross-examine him on the extent and nature of his concern about these issues, with the result that the jury would have been presented an entirely one-dimensional, one-sided portrayal of the defendant’s state of mind with respect to those issues. Neither Rule 403 nor the basic principles of fairness underlying the Federal Rules of Evidence . . . would permit the defendant to put [those paragraphs] before the jury in such manner. . .

. . .The defendant claims that the Court’s exclusion of a portion of the testimony from the briefers presents a substantial question. This claim likewise lacks merit. The decision to exclude a portion of the briefers’ testimony was, like the exclusion of the Statement, based on the fact that the relevance of that testimony was predicated on testimony from the defendant regarding the importance he attached to the information the briefers provided him. “Without the defendant’s own testimony, he could not present through the briefers evidence suggesting what matters were allegedly consuming his time or attention beyond when the briefings were conducted, or the relative importance of those matters he was tasked to address at a particular time.” Libby, 475 F. Supp. 2d at 89. . .

. . .In permitting the defendant to admit some testimony from the briefers, while excluding other information whose relevance was specifically predicated on the defendant’s testimony, the Court struck a careful balance under Federal Rules of Evidence 401 and 403. As with its decision regarding the Statement, nothing about this ruling presents a “close question.” The defendant’s citations to this Court’s statements that it was “not sure” whether to exclude a portion of the testimony or that it was “a tough call” must be put in context. These statements were made in the context of a district court’s routine and discretionary evidentiary determinations under Rules 401 and 403. They are highly fact specific, based on the district court’s assessment of relevance, and of what the defendant was able, through other evidence, to put before the jury. These statements also preceded the district court’s thorough analysis in its March 1, 2007 opinion as to why a portion of the briefers’ testimony was justifiably excluded at trial, an analysis that offered no equivocation on the issue:

The government was correct that, as was true of the Statement Admitting Relevant Facts, the Court’s § 6(a) rulings pertaining to the defendant’s intelligence briefings, and the level of detail the Court deemed admissible, hinged on its assumption that the defendant himself would lay a foundation establishing their relevance. Likewise, as with the Statement, the Court was cognizant of the potential for prejudice that would have arisen if the defendant had been permitted to portray his own state of mind without allowing the government any effective means of challenging it through cross examination.

And there was indeed a significant danger that if presented with details of national security issues and suggestions by those who worked with him that the defendant himself was personally concerned about those issues, the jury would have been unable to resist speculating about the relative import of those matters to thedefendant. . .

so — while i will concede that there may besome tenuous basis to suggest that the c.i.p.a.§§ 6(a) and (c) substitutions were some evidenceof fitz acting beyond the statute — too indepen-dently — i think it a stretch to manufacture the rich and hearty soup of release, from this warm, but ultimately-watery, gruel. i submit that these,like the admission or non-admission decisions areevidentiary, and would not present a question — “close“,or otherwise — likely to result in a reversal.

. . .In the area of national security, however, the mission of the Attorney General is arguably just as sacred. The Attorney General is largely concerned with safeguarding national security, either by prosecuting those who endanger it or by discharging his CIPA duties. In cases that do not involve the interaction of CIPA and the IC Statute, the Attorney General often must decide between the public disclosure of classified information and the dismissal of charges against a defendant.

The Independent Counsel’s and Attorney General’s interests may compete as they did in North and Fernandez. The Independent Counsel is appointed to worry more about a successful prosecution than about preventing the disclosure of classified information that may compromise national security. The Independent Counsel, unlike the Attorney General, is not part of the Cabinet. This ensures insulation from political bias, but on the other hand, it may mean narrowness of goals and vision. Finally, the factual information that guides the Attorney General’s and the Independent Counsel’s respective analyses is likely to be different because their investigative resources and access to relevant information are often unequal. The Independent Counsel may not have access to information that would show how serious a threat to national security the public disclosure of certain classified information could pose while the Attorney General and other cabinet members would. Moreover, the Independent Counsel will ordinarily not be privy to the Executive Branch’s foreign policy goals, which may affect the seriousness of a classification.

The Attorney General on the other hand might be overly concerned about the potential threat to national security presented by a CIPA case. This might be the result of the intelligence agencies’ tendency to over-classify and the deference that the Attorney General might pay to the experts in the intelligence agencies. In a CIPA- [568] IC Statute case, the Executive’s loss of exclusive control over these prosecutions might cause it to be more conservative in the positions that it takes relating to classified information. Once it decides that information can be publicly disclosed, the Independent Counsel alone makes the determination on the part of the Executive Branch whether the prosecution ought to continue.

Because the Attorney General and the Independent Counsel ultimately do not have entirely the same goals, some conflict concerning the use of classified information is inevitable. Indeed, even if the interests of the Independent Counsel and Attorney General completely coincided-if, for instance, both were concerned with balancing national security interests against prosecutorial benefits-it would still be very likely that the Independent Counsel and the Attorney General would disagree in many classified information/ national security cases. Disagreements are inevitable, if only because balancing the competing considerations in these complex cases is an imprecise science. More than one reasonable analysis or balance is almost always possible, and any two reasonable lawyers are bound to disagree about the judgments that have to made in difficult cases. . .